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Pursuant to N.J.S.A. 18A:6-7.1, the Criminal History Review Unit (“CHRU”) of the New Jersey Department of Education (“NJDOE”) is authorized to permanently disqualify a public school employee from employment with any educational institution supervised by the NJDOE if that individual is convicted of certain New Jersey crimes or a substantially equivalent crime in another state. On June 29, 2016, the New Jersey Appellate Division inKelly v. New Jersey Department of Education and Lawrence Township Board of Education, 2016 N.J. Super. Unpub. LEXIS 1506 (App. Div. 2016), analyzed whether a teacher’s convictions in Pennsylvania for recklessly endangering another person and possessing instruments of crime substantially equated to New Jersey crimes that would permanently disqualify him from teaching.

David Kelly was employed as a tenured music teacher by the Lawrence Township Board of Education. In January 2012, a Pennsylvania jury convicted Mr. Kelly for multiple offenses, including two counts of recklessly endangering another person, one count of possessing instruments of crime, two counts of simple assault, and one count of disorderly conduct. Thereafter, in February 2012, the CHRU determined that under N.J.S.A. 18A:6-7.1 Mr. Kelly was permanently disqualified from employment with any educational institution due to the criminal convictions of recklessly endangering another person and possessing instruments of crime. As result of the CHRU’s decision, Mr. Kelly was immediately terminated.

Mr. Kelly then initiated a Petition of Appeal, which was first heard by an Administrative Law Judge (“ALJ”). The ALJ found in favor of Mr. Kelly and concluded that, based on the plain reading of the Pennsylvania statutes, neither of Mr. Kelly’s convictions of recklessly endangering another person and possessing instruments of crime substantially corresponded to any of the offenses listed at that time in N.J.S.A. 18A:6-7.1 that would warrant permanent disqualification. Thereafter, the Commissioner of Education (“Commissioner”) reversed the ALJ. In ruling in favor of the CHRU and Board of Education, the Commissioner relied on an affidavit of probable cause from the criminal case as factual evidence to demonstrate that the Pennsylvania crime of recklessly endangering another person matched a New Jersey crime under N.J.S.A. 18A:6-7.1. The New Jersey equivalent statute at the time regarding reckless endangerment required the use or threatened use of force. Having decided that Mr. Kelly was permanently disqualified from teaching due to his Pennsylvania conviction of recklessly endangering another person, the Commissioner declined to rule on Mr. Kelly’s Pennsylvania conviction of possessing instruments of crime.

Unfortunately for the CHRU and Board of Education, the Appellate Division determined that the factual record, particularly the heavy reliance on the affidavit of probable cause, did not support a finding that Mr. Kelly’s Pennsylvania conviction of recklessly endangering another person was substantially equivalent to a New Jersey disqualifying crime. While the affidavit of probable cause contained statements from victims demonstrating Mr. Kelly’s use of force, the Appellate Division found that the affidavit was unreliable double hearsay. While hearsay is generally admissible in administrative proceedings, the Appellate Division reasoned that the residuum rule requires some independent, legally component evidence to support a finding of fact, which was absent from this case. Rather, the CHRU and Board of Education should have included in the record any facts and evidence that were actually admitted into evidence in the criminal trial or any evidence of the jury finding that Mr. Kelly used or threatened to use force.

As the Commissioner did not rule on whether Mr. Kelly’s Pennsylvania conviction of possessing instruments of crime permanently disqualified him from teaching in New Jersey, the Appellate Division remanded this issue for further proceedings.

Criminal convictions of public school employees are serious concerns for boards of education and charter schools and raise questions regarding discipline and disqualification. As this case demonstrates, out-of-state convictions further complicate these matters and extra caution should be taken when addressing whether an out-of-state conviction is substantially equivalent to a New Jersey crime that would warrant disqualification. For more specific guidance, boards of education and charter schools should consult with their board attorney.

About the Author

About the Author:

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA. In connection with these representations, she is experienced in handling matters before State and Federal courts, including the Office of Administrative Law. Ms. Dev is an experienced special education litigator and defends school districts in due process hearings from inception through trial. In addition, she has handled matters before governmental agencies, including the U.S. Office for Civil Rights and New Jersey Division on Civil Rights. Ms. Dev routinely conducts training and seminars, drafts policies and manuals, and provides strategic advice to school administrators regarding school law issues. Ms. Dev was recently recognized as one of South Jersey’s Awesome Attorneys as published by South Jersey Magazine. She is licensed to practice law in New Jersey, the District Court for the District of New Jersey and Pennsylvania.

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